Smith v. Ellington-Guy Timber Co.

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Smith v. Ellington-Guy Timber Co., 71 S.E. 445, 155 N.C. 389 (N.C. 1911)
• Decision Date: 31 May 1911
• Parties: SMITH et ux. v. ELLINGTON-GUY TIMBER CO.

71 S.E. 445

155 N.C. 389

SMITH et ux. v. ELLINGTON-GUY TIMBER CO.

Supreme Court of North Carolina

May 31, 1911

Appeal from Superior Court, Duplin County; Peebles, Judge.

Action by Lonnie Smith and wife against the Ellington-Guy Timber Company. From a judgment for plaintiffs, defendant appeals. Reversed.

A devise of land to testator's children subject to the provision that the share of any child dying without issue of his body shall descend to the survivors of the children, or the lawful heirs surviving any of the children, gives to the children an estate in fee, defeasible as to each on his dying without leaving lawful issue, and on the death of a child without issue surviving his interest passes to the surviving children or grandchildren surviving any of the children; the words "lawful heirs" meaning surviving children and grandchildren of the devisees, who take and hold as purchasers directly from testator.

Civil action heard on case agreed May, 1911. On the hearing it was properly made to appear that plaintiffs had contracted in writing to sell defendant an interest in a certain tract of land in said county, stipulating that a good title should be made, and, having tendered a deed for the property in correct form, defendant resisted payment, claiming that the title offered was defective. On the question of title it appeared that Bryant Smith, now deceased, was the owner of this and other lands, and had in the third item of his will devised his real estate, including this tract, to six of his children, to wit, Penelope, Lemuel, Hepsey, Nancy (the plaintiff), Celia, and Bryant. The devise containing and affected by a limitation explained as follows: "And it is further my will and desire that if any of my said children mentioned in this item of my said will should die without leaving lawful issue of his or her body surviving, or to be born within the period of gestation after his death, then it is my will and desire that the part therein given and devised to said child shall descend to and upon the survivors of my said children mentioned in this item of this my will, or upon the lawful heirs who may be surviving any of my said children mentioned in this item." By a subsequent clause of this will, another child, Sapronia, having married contrary to her father's wishes, was given $1 as her full share of the estate. After the death of Bryant Smith, the six children mentioned in item 3 of the will instituted proceedings, and partition of the land was duly made between these devisees that portion of the land, the subject of this contract, being duly assigned to feme plaintiff. The case further states that one child had been born to plaintiff which lived a short time, and is now dead. Upon these facts, the court, being of opinion that plaintiffs could convey a good title, entered judgment enforcing the contract, and defendant excepted and appealed.

G. V Cowper, for appellant.

H. D. Williams, for appellees.

HOKE J.

Under several recent decisions of the court, the children under the third item of this will took an estate in fee simple defeasible as to each on an uncertain event, in this case "a dying without leaving lawful issue of his or her body surviving or to be born within the period of gestation after death." Perrett v. Byrd, 152 N.C. 220, 67 S.E. 507; Dawson v. Emmett, 151 N.C. 543, 66 S.E. 566; Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am. St. Rep. 539; Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904; Smith v. Brisson, 90 N.C. 284. And we have held, also, in these and other cases, that when a devise is limited over on a contingency of this kind, unless a contrary intent clearly appears in the will, the event by which each interest is to be determined must be referred, not to the death of the devisor, but to that of the several holders, respectively. Speaking to this question in Harrell v. Hagan, supra, the court said: "Under several of the more recent decisions of the court, the event by which the interest of each is to be determined must be referred, not to the death of the devisor, but to that of the several takers of the estate in remainder, respectively, without leaving a lawful heir. Kornegay v. Morris, 122 N.C. 199 [29 S.E. 875]; Williams v. Lewis, 100 N.C. 142 [5 S.E. 435, 6 Am. St. Rep. 574]; Buchanan v. Buchanan, 99 N.C. 308 . And by reason of the terms in which the contingency is expressed, 'that if each or all of the girls die without leaving a lawful heir, then the land,' etc., and other indications which could be referred to, the estate does not become absolute in the other daughters on the death of one of them without leaving such heir, but the determinable quality of each interest continues to affect such interest until the event occurs by which it is to be determined or the estate becomes absolute. Galloway v. Carter, 100 N.C. 112 [5 S.E. 4]; Hilliard v. Kearney, 45 N.C. 221."

Construing this will in reference to these authorities, and bearing in mind the well-recognized positions that as to wills "the intent of the testator, as...